Contact Chiropractic, P.C., as Assignee of Girtha Butler, Respondent,v.New York City Transit Authority, Appellant.BriefN.Y.March 21, 2018September 14, 2016 --LAW OFFICE OF-- coHEN & .JAFFE Judges of the Court of Appeals ---- L L e State of New York 20 Eagle Street Partners Albany, New York 12207-1095 STEPHEN M. COHEN RICHARDS. JAFFE Associates STEPHEN B. TIGER SENI POPAT TRICIA SMITH 2001 Marcus Avenue, W295 Lake Success, NY 11042 516-358-6900 www.CohenJaffe.com info@CohenJaffe.com RE: Contact Chiropractic a/a/o Girtha Butler v. NYC Transit Authority APL-2016-00111 Rule 500.11 Letter Brief Your Honors, Plaintiff-Respondent Contact Chiropractic, P.C. ("Respondent"), submits this letter brief, pursuant to section 500.11 of the Court of Appeals Rules of Practice, in response to Defendant-Appellant NYCT A's ("Appellant") letter brief, dated July 18,2016. Respondent hereby expressly incorporates by reference the entire contents of its brief submitted to the Appellate Division, Second Department ("Appellate Division") as written by Aaron J. Perretta, Esq., as well as the Record on Appeal to the Appellate Division, per Rule 500.11 [ f]. 1 Respondent is directly suing Appellant pursuant the New York No-Fault Regulations via an assignment of benefits on an implied policy of insurance, for unpaid monies owed for chiropractic treatment performed for the benefit of assignor, Girtha Butler. The Appellate Division affirmed the Appellate Term's determination, that an action to recover first-party No-Fault benefits from a self- insured entity is subject to a six-year statute of limitations period governing contractual obligations under CPLR § 213 (2), as the claim is contractual in nature. The Appellate Division's decision should be affirmed as the decision was properly made in accordance with its own prior decisions, Court of Appeals precedent and legislative intent to provide maximum protection to innocent victims of self- insured motorists. 2 Question Certified to the Court of Appeals: Was the decision and order of the Appellate Division, dated January 20, 2016, properly made, when the court determined an action to recover first-party No-Fault benefits from a self-insured entity is subject to a six-year statute of limitations period governing contractual obligations under CPLR § 213 (2)? Answer: Yes, the Appellate Division's determination was proper, as it was consistent with its own prior decisions, precedent from the Court of Appeals, and legislative intent on these issues. 3 I. THE APPELLATE DIVISION'S DETERMINATION WAS PROPER, AS IT WAS CONSISTENT WITH ITS PREVIOUS DECISIONS The Appellate Division consistently holds self-insured entities, including Appellant specifically, are subject to a six-year statute oflimitations period applicable to contractual obligations under CPLR § 213 (2). In ELRAC, Inc. v. Suero, 38 A.D.3d 544 (App. Div. 2nd Dept. 2007), the court decided that a claim for uninsured motorist ("UM") benefits against a self-insured vehicle owner, while statutorily mandated, remained contractual rather than statutory in nature, and, as such, was subject to a period of six-year statute of limitations governing contractual liabilities, rather than three-year limitations period for actions on statutorily imposed liabilities. Citing to both the First Department and Court of Appeals, the court held: From an injured claimant's perspective, "[t]he right to obtain uninsured motorist protection from a self-insurer is no less than the corresponding right under a policy issued by an insurer" (Matter of Country-Wide Ins. Co. [Manning], 96 A.D.2d 471, 472, 464 N.Y.S.2d 786, affd. 62 N.Y.2d 748, 476 N.Y.S.2d 831,465 N.E.2d 370; see Matter of Allstate Ins. Co. v. Shaw, 52 N.Y.2d 818, 820,436 N.Y.S.2d 873,418 N.E.2d 388). ELRAC contends that while an injured claimant unquestionably has six years to assert an uninsured motorist claim against an insured owner's carrier (see e.g. Jenkins v. State Farm Ins. Co., 21 A.D.3d 529, 530, 801 N.Y.S.2d 42), that person has only three years to assert an identical claim against a self-insured owner. We disagree. The respondents' claim for uninsured motorist benefits against a self-insured vehicle owner, while statutorily mandated, remains "contractual rather than statutory in nature" (Matter of Manhattan & Bronx Surface Tr. Operating Auth. v. Evans, 95 4 A.D.2d 470,472,467 N.Y.S.2d 387; cf Matter of DeLuca v. Motor Veh. Ace. Indem. Corp., 17 N.Y.2d 76, 79, 268 N.Y.S.2d 289, 215 N.E.2d 482) and, as such, is subject to the six-year statute of limitations (see Matter of New York City Health & Hasps. Corp. [Degorter], 133 Misc.2d 93, 97, 506 N.Y.S.2d 644). ELRAC, Inc. v. Suero, 38 A.D. 3d at 545. In NYCTA v. Hill, 968 N.Y.S.2d 134 (App. Div. 2nd Dept. 2013), the Appellate Division applied the holding in ELRAC to Appellant herein when a passenger riding a bus owned by Appellant, NYCTA, collided with another vehicle. The court determined, "Hill's claim for uninsured motorist benefits against the NYCTA, a self-insurer, is subject to the six-year statute of limitations ofCPLR 213[2]". See also NYCTA v. Powell (NYCTA, a municipal self-insurer, was subject to the six-year statute oflimitations period for filing a UM claim). Hill and Powell expanded upon ELRAC, which involved a private self-insured, to include municipal self-insureds, including Appellant itself. These decisions establish that private and municipal self-insureds are equally subject to the obligations and liabilities under UM law. While the above decisions involved UM claims and the claim herein is for no-fault, UM and no-fault claims should be treated the same as there is no discernible difference between these two claims under the law. As the court stated in Spring World Acu., P.C. v. NYCTA, 884 N.Y.S.2d 556 (App. Term, 2nd Dept. 2009): 5 [L]ike the UM endorsement, the Personal Injury Protection Endorsement (no-fault endorsement) is also mandatory. Just as the rights and remedies of an injured claimant are set forth in the mandatory UM endorsement, so are the rights and remedies of an insured person set forth in the mandatory no-fault endorsement. Since the right to obtain UM protection from a self-insurer "is no less than the corresponding right under a policy issued by an insurer" ... , it follows that the right to obtain first-party no-fault coverage from a self-insurer is no less than the right to obtain the same from an insured under a policy ... Accordingly, we hold that an action to recover first- party no-fault benefits from a self-insured entity is subject to the same six-year statute of limitations as an action against an insurer pursuant to the policy. Spring World Acu., P.C. v. NYCTA, 884 N.Y.S.2d 556, 558 (App. Term, 2nd Dept. 2009). In Mandarino v. Travelers Prop. Cas. Ins. Co., 831 N.Y.S.2d 452 (App. Div. 2nd Dept. 2007), the Appellate Division, applied the same underlying principles to a No-Fault matter, holding an action to recover no-fault benefits was subject to the six-year statute of limitations period applicable to contractual obligations under CPLR § 213 (2), despite the fact that nof"ault provisions in an insurance contract are statutorily mandated. In analyzing the language ofCPLR § 213 (2) and CPLR § 214 (2), the court stated: as a matter of strict statutory interpretation, where the plaintiffs action is based upon both a "contractual obligation or liability" and upon a "liability, penalty or forfeiture created or imposed by statute," the longer, six-year statute of limitations, as provided in CPLR 213 (2), is applied to the exclusion of the three-year statute oflimitations provided in CPLR 214 (2) ... Although the relevant terms of such contracts are mandated by various provisions of the Insurance Law, we find that the six- 6 year statute of limitations provided in CPLR 213 (2) applies to the exclusion of the three-year statute of limitations provided in CPLR 214 (2). Mandarino v. Travelers Prop. Cas. Ins. Co., 831 N.Y.S.2d 452, 454 (App. Div. 2nd Dept. 2007). As Mandarino establishes, although the direct mandate to provide no-fault benefits is statutory, Appellant's obligation to provide said benefits is "fundamentally contractual in nature and not a creature of statute." I d. at 455. The "inclusion of terms in an insurance contract, which might be mandated by various statutes or regulations, does not necessarily alter the fundamentally contractual nature of the dispute." I d. Plaintiff's action herein for no-fault benefits is based upon both an implied contractual obligation (to be discussed in detail in the next section), and upon liability imposed by statute (specifically, N.Y. Insurance Law§ 5103 (a)(l), N.Y. Vehicle & Traffic Law§ 370, and N.Y. Vehicle & Traffic Law§ 321), rendering the the six-year statute of limitations, as provided in CPLR § 213 (2), applicable to this matter. Since there is no basis in law or compelling reasons of policy to distinguish between the right to uninsured motorist benefits and the right to no- fault benefits, a claim for no-fault benefits against a self-insurer, such as Appellant here, should be governed by the six-year statute oflimitations pursuant to CPLR § 213 (2). 7 II. THE APPELLATE DIVISION'S DETERMINATION WAS PROPER, AS IT WAS CONSISTENT WITH BINDING PRECEDENT FROM THIS HONORABLE COURT A. An Action Arising From an Implied Contract is Governed by CPLR § 213 (2): It is now fairly well-settled in both the first and second department that an action to recover assigned first -party no-fault benefits under a policy of insurance is fundamentally a breach of contract action subject to the six-year statute of limitations contained in CPLR § 213 (2) (see Chester Med. Diagnostic, P.C. v. Kemper Cas. Ins. Co., 873 N.Y.S.2d 232 (N.Y. Civ. Ct. 2008); Mandarino v. Travelers Property Cas. Ins. Co., 831 N.Y.S.2d 452 [2nd Dep't 2007]; Benson v. Boston Old Colony Ins. Co., 521 N.Y.S.2d 14 [1st Dep't1987], lv. denied 71 N.Y.2d 801,527 N.Y.S.2d 767, 522 N.E.2d 1065 [1988]; Travelers Indem. Co. of Connecticut v. Glenwood Medical, P.C., 48 AD3d 319, 319-320, 853 N.Y.S.2d 26, 26 [1st Dep't 2008]). Thus, even though no-fault law itself does not "codify common law principles" and no-fault law "creates new and independent statutory rights and obligations", as stated by the Court of Appeals in Aetna Life and Cas. Co. v. Nelson, 67 N.Y.2d 169 (1986) actions to recover no-fault benefits are still based in common law principles, specifically, breach of contract. Here the action to recover no-fault benefits is similarly based in the common law principles of contract. The contract at issue is an implied contract. CPLR § 213(2) provides a 8 six-year statute oflimitations where the plaintiffs action is one based "upon a contractual obligation or liability, express or implied ... ". Futhermore, it has been long established by the Court of Appeals that implied contracts are "contracts which are evidenced by the acts of the parties and not by their verbal or written words-true contracts which rest upon an implied promise in fact". Miller v. Schloss, 218 N.Y. 400,406, 113 N.E. 337, 338 (1916). Thus, an insurance contract may be implied even in the absence of a written or oral agreement. An implied contract exists in the underlying action, as is evidenced by the actions of the parties, NYCTA (public carrier), and Girtha Butler (assignee of no- fault benefits and injured bus passenger). The acts of the two parties show their intent to enter into an insurance contract; Passenger promises to pay bus fare in exchange for Public carrier's implied promise to transport Passenger from point A to point B safely. The breach of Public carrier's implied promise, i.e. an accident occurs and Passenger does not arrive at point B safely, gives Passenger a contractual remedy in no-fault. Hence why the relationship is "contractual in nature." The decision to make NYCTA a public carrier and transport passengers for a fare, results in an implied contract with those it transports. Thus, in accordance with Miller v. Schloss, an implied contract exists in the case at bar, as is evidenced by the parties' acts of exchanging money for safe transport. 9 B. The Applicable No-Fault Statutes Impose Liability for an Implied Breach of Contract, a Wrong Recognized in Common and Decisional Law: The implied contract entered into between public carrier and passenger renders the six-year statute of limitations under CPLR § 213 (2) applicable to the wrongful withholding of no-fault benefits. As the Court of Appeals set forth in Hartnett v. New York City Transit Auth., the important inquiry to determine the applicable statute of limitations is "whether the statute creates a liability 'for wrongs not recognized in the common or decisional law,' and which would not exist but for the statute. Hartnett v. New York City Transit Auth., 86 N.Y.2d 438 ( 1995). "A proper test of whether a particular liability is one that was created by statute is to determine whether the liability is 'a governmental statutory denouncement of a human action heretofore undenounced'" Id. at 439. "It is necessary to examine the substance of that action to identify the relationship out of which the claim arises and the relief sought" I d. at 443. Here, VTL § 321(2) and Article 51 ofthe Insurance law impose liability for an implied breach of contract, a wrong recognized in common and decisional law. The statute in Hartnett, Labor Law§ 27-a (1 0), is distinguishable as it created liability for unsafe working conditions for public employees and created a cause of action unknown at the common law. The liability imposed by VTL § 321(2) and Article 51 is a governmental statutory denouncement of a human action, specifically, failure to abide by contractual obligation, previously denounced at 10 common law. The relationship between both an insurance carrier and insured, and between a self-insured company and uninsured passenger, are all contractual in nature. Both involve voluntarily assumed relationships, the formation of which results in a statutory duty to provide no-fault benefits in case of accident. But for the regular insurance carrier's and insured's voluntary acts of exchanging money for insurance coverage, liability would not be imposed under VTL § 321(2) or Article 51 of the Insurance law. But for the self-insured NYCTA's and bus passenger's acts of exchanging money for safe transport, liability would not be imposed under VTL § 321(2) or Article 51 of the Insurance law. Since the relationships between both are similarly contractual in nature, with applicable terms mandated by statute, and since the protections from a self-insurer are no less the corresponding right under a policy issued by an insurer as established in Evans, ELRAC, and Spring World, the six-year statute oflimitations should continue to apply to insurance companies and self-insured companies, alike. Furthermore, applying a six-year statute oflimitations is consistent with the standard set forth in Mandarino, 831 N.Y.S.2d at 454. Since this action is based upon both a "contractual obligation or liability" (implied contract evidenced by parties' acts) and upon a "liability, penalty or forfeiture created or imposed by statute [VTL § 321 (2) and Article 51], the six-year statute oflimitations provided in CPLR § 213 (2) applies to the exclusion of the three-year statute oflimitations 11 provided in CPLR § 214 (2). The imposition ofliability by statute arises only as a result of the implied contractual relationship between the parties. Thus, the contractual nature of the relationship between the parties herein cannot be overlooked. C. An Action Arising From Terms in a Contract, Not Originally Agreed to by Parties May Still be Governed by CPLR § 213 (2): The mere existence of an express contract does not necessarily mean binding terms within that contract were fully negotiated prior to a cause of action arising from said terms. First, no-fault's inclusion in an insurance contract is statutorily mandated, so minimum coverage cannot be negotiated out of through agreement. Second, even terms to the insurance contract originally agreed upon can be changed despite the expectation of the parties. For instance, in Gurnee v. Aetna Life and Cas. Co., 55 N.Y.2d 184 (N.Y. 1982 ), the parties entered into an insurance contract, in which they agreed that if an accident were to occur, the insured could recover in first-party benefits 80 percent of actual lost earnings up to a maximum of $800 per month (statutorily mandated amount at the time the agreement was executed). After said agreement went into effect, the statutory mandated amount increased from $800 to $1000. The court retroactively read the $1000 amount into the insurance contract even though the parties never agreed to that $1,000 amount, and a six-year statute of limitation was 12 applied to collect the "non-contracted" amount in lost wages. While the parties did agree that lost wages would be provided in the original contract, they never agreed to the amount to which the insurer was later bound to provide. This decision shows that statutory mandate and legislative goals can trump the terms of an original agreement, rendering the original terms ineffective. "The endorsement is not a private contract, fully negotiated by carrier and insured; a supervening public interest modifies its terms in keeping with public policy" Manhattan and Bronx Surface Transit Operating Auth. v. Evans, 95 A.D.2d at 472, 467 N.Y.S.2d 387, 389 (N.Y. App. Div. 2d Dept. 1983). While Appellant argues in its letter-brief that NYCT A never agreed to provide insurance to Respondent assignor, the Appellate Division addressed this argument in Evans, stating "(the public carrier's) argument that it had never agreed to arbitrate respondent's claim is unavailing." Id. Thus, contrary to Appellant's assertion in its Reply brief to the Appellate Division, it is not necessarily the case that binding terms within a contract are fully negotiated beforehand. Moreover, as Gurnee shows, an action arising from terms not originally agreed to by parties in a contract can still be brought under CPLR § 213 (2) breach of contract action. 13 D. The Court of Appeals Decisions in MVAIC v. Aetna and Aetna v. Nelson Are Distinguishable From the Instant Matter: The facts in MVAIC v. Aetna Cas. & Sur. Co, 89 N.Y.2d 214 (1996) and Aetna Life and Cas. Co. v. Nelson, 67 N.Y.2d 169 (1986) are completely different from the facts of this case herein. In MY AIC v Aetna, the action was initiated by a carrier seeking arbitration, pursuant to Insurance Law§ 5105[a], [b] against another carrier who denied coverage. The action was purely statutory in nature and could not be viewed as arising out of any contract, as no contract, express or implied, existed between the two carriers. Nor did legislative policy considerations exist, which required implying the existence of an insurance policy where no express contract existed. In Aetna v. Nelson, the action was initiated by an insurer against a No-Fault claimant, pursuant to Insurance Law § 673 [2] [now§ 5104 (b)], seeking to enforce a lien on a judgment to recoup first-party benefits it previously paid under no-fault law, in order to obviate what would have otherwise been a "double recovery" by the no-fault claimant. No injured persons were in need of protecting in MVAIC v Aetna nor in Aetna v. Nelson. Injured persons in both cases were already paid before each suit was brought. Moreover the carrier in Aetna v. Nelson never argued its claim sounded in contract. It was under those specific circumstances, of carrier seeking arbitration against carrier pursuant to inapplicable statute and of carrier seeking to 14 enforce a lien on a judgment to avoid double payment, that the Court of Appeals held that the claims were governed by the three year statute of limitations. To the contrary, here, Respondent provider is directly suing Appellant carrier pursuant to the no-fault law via an assignment of benefits on an implied policy of insurance. This is not a claim between two insurance companies not based in contract, nor is there is an issue of"double recovery" based upon a judgment against New York State that encompasses a prior recovery against an insurance carrier. Furthermore, Respondent here directly argues its claim sounds in contract. Thus, this case is clearly distinguishable from both MV AIC v. Aetna and Aetna Life v. Nelson. Instead, the facts here are analogous to Spring World, where the court held a six-year statute of limitations applies as the action based on an implied contractual obligation or liability, rather than three-year statute of limitations for an action based on a liability created or imposed by statute, applied to medical provider's action against self-insured public bus operator to recover assigned first-party no- fault insurance benefits. The court determined that while a public bus carrier has a statutorily imposed obligation to provide no-fault benefits because it was self- insured, the carrier nevertheless was obligated to provide same benefits as those required in an insurance policy. 15 E. Appellant's Attempts to Liken Itself to MV AIC is Misplaced: NYCTA and MV AIC are completely distinguishable entities, since unlike NYCTA, MVAIC's creation and continuance is statutorily required. It is important to take note ofthe reasoning behind the decision in MV AIC v Aetna. The Court of Appeals states that MV AIC's obligation to pay no-fault benefits is purely statutory for two reasons. First, "MVAIC itself is a statutory creation (see Insurance Law§ 5203[a]-[c] )".Motor Veh. Ace. Indemnification Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214, 220 (N.Y. 1996). Second, "the rights conferred upon it under articles 51 and 52 of the Insurance Law to avail itself of the loss-transfer and responsibility-shifting provisions of the No-Fault Law arise only by statutory enactment or departmental regulations (see Insurance Law§§ 5105, 5221 [b ][6]; 11 NYCRR 65.10, 65.15)" Id. With regards to the first reason, MV AIC was created by statute. See Insurance Law§ 5203[a] ("the non-profit corporation known as the 'motor vehicle accident indemnification corporation' shall be continued"), See also Insurance Law § 5203[c] ("corporation shall be obligated to provide the protection required by this article to a qualified person on account of a motor vehicle accident caused by owners or operators of motor vehicles occurring within the state"). MVAIC is a non-profit, state-run agency, which is statutorily required to exist and to step into the shoes of the insurance company when there is no insurance. But for Insurance 16 Law§ 5103, MV AIC would not exist. MVAIC's obligation to pay no-fault benefits arises only as a result of statutory enactment(§ 5105, §5221) or departmental regulations (11 NYCRR 65.1 0, 65.15). MV AIC is not for-profit, provides no insurance policy, nor certificate of self-insurance, and makes no voluntary decision rendering itselfliable under the aforementioned statutes. Therefore, its obligation to provide no-fault benefits is purely statutorily imposed. The same cannot be said for NYCTA. NYCTA was not created by statute, it is a for-profit business and is self-insured. It was created by the Legislature as a separate public corporation to manage and operate all city-owned bus, trolley, and subway routes. While Insurance Law§ 51 03(a)(l) imposes a duty on the owner of a bus to provide first-party no-fault benefits to its passengers, NYCTA does not exist because of§ 5103. Unlike MVAIC, NYCTA's existence was not created by statute, nor is its continuing to run statutorily required. Like any insurance company, NYCTA's existence and business could be discontinued. As an insurance company could stop issuing insurance policies for profit, NYCTA could stop transporting passengers for profit. The cessation of their respective businesses would result in Article 51 no longer applying to them. MV AIC, to the contrary, cannot decide to discontinue its existence, as its existence (creation and continuing operation) is statutorily mandated. This voluntary decision on the city's part to run NYCTA as a public carrier 17 renders it liable under VTL § 321 (2) and § 5103 if an accident occurs while transporting its customers. So while there is a statutory duty under§ 5103 to provide no-fault benefits to its passengers, the duty is voluntarily assumed. But for that decision to transport its passengers for hire, thereby entering itself into an implied contract with its passengers, liability would not be imposed under VTL § 321(2) or§ 5103. In that regard, NYCTA is similar to a regular insurance company; the insurance company's decision to run a for-profit business and enter into insurance contracts with its insureds, results in the imposition of statutory liability under Article 51 of the Insurance Law. Thus, while statute(§ 5203) is a necessary and sufficient basis for liability to exist for MV AIC, as there is no voluntarily act resulting in the formation of an implied contract, the same cannot be said for the NYCTA. The voluntary exchange of bus fare for safe transport results in an implied contract between NYCTA and its passenger, which is necessary for liability to arise under statute. Therefore, any resulting action for no-fault benefits must be based in a breach of contract action under CPLR §213 (2) with a period of six- year statute of limitations. 18 III. THE LEGISLATURE INTENDED TO AFFORD INNOCENT VICTIMS OF SELF-INSURED MOTORISTS THE SAME LEVEL OF PROTECTION AVAILABLE TO VICTIMS OF MOTORISTS WITH A POLICY OF INSURANCE, WITH RESPECT TO THEIR RELATIVE ABILITY TO OBTAIN FIRST-PARTY NO-FAULT BENEFITS Legislative intent behind the enactment of no-fault law was to provide maximum coverage to injured parties. The Court of Appeals stated this in Shaw. In that case, a leased automobile's passenger was injured when her car collided with another uninsured vehicle. The Court of Appeals concluded that the car rental company's status as a self-insured did not excuse it from its obligation of providing its passenger uninsured motorist coverage. The court reasoned, that there was no rational basis for treating a corporation offering a certificate of self- insurance as proof of financial responsibility differently than one offering a policy of insurance. As such, the court deemed an uninsured motorist provision included in the car rental company's certificate of self-insurance. Legislative intent was important to the court's determination was. Specifically the court stated: The Legislature has specifically declared its grave concern that motorists who use the public highways be financially responsible to ensure that innocent victims of motor vehicle accidents be recompensed for their injuries and losses (Vehicle and Traffic Law, § 31 0) ... the provisions must be interpreted as a whole, giving the words a meaning which serves rather than defeats the over-all legislative goals (see Motor Vehicle Ace. & Ind. Corp. v Eisenberg, 18 NY2d 1, 3; Matter ofTaub [MVAIC], 31 AD2d 378, 381) ... When the Legislature authorized the filing of a certificate of self- insurance by car rental companies to demonstrate their 19 financial ability to respond to liability claims (Vehicle and Traffic Law,§ 370, subd 3), it in no way intended to decrease the insurance protection presently available. The legislative history of subdivision 3 of section 3 70 of the Vehicle and Traffic Law makes this clear. The bill jacket contains a memorandum from the Department of Motor Vehicles stating that the provisions "would not, by permitting self-insurance rather than requiring insurance, result in any diminution of the protection now afforded to users of [rental] vehicles or to other persons ... (motor vehicle rental corporations and corporations engaged in transporting passengers for hire "shall be subject to the provisions of this section) in the same manner and to the same extent''.". Allstate Ins. Co. v. Shaw, 52 N.Y.2d 818, 819-21 (N.Y. 1980). "Without a doubt, it was the intent of the Legislature that all claimants entitled to uninsured motorist coverage be treated the same, regardless of whether they were dealing with a self-insurer or an insurer". Matter of Manhattan & Bronx Surface Tr. Operating Auth. v Evans 95 A.D.2d at 472. See also McKenna v. Nassau County, 61 N.Y.2d 739, 742 (N.Y. 1984) ("municipal self- insurers should be treated, under the No-Fault Law, in the same manner as any insurance company"). Additionally, the six-year statute oflimitations CPLR § 213 (2) is consistent with Legislative intent to provide maximum coverage to injured parties in fair exchange for their having to abandon their right to sue for pain and suffering. The Court of Appeals in Gurnee v. Aetna Life and Cas. Co. citing Montgomery v. Daniels, 38 N.Y.2d 41, 55,378 N.Y.S.2d I, 340 N.E.2d 444 stated: 20 The no-fault legislation foreclosed recovery for pain and suffering by persons who had suffered relatively minor injuries in automobile accidents, but balanced this by providing a means of obtaining prompt and full recovery for certain economic losses. Plaintiffs were denied the ability to sue for pain and suffering, yet they were also denied the full recovery to which they were entitled under that scheme. The un-fairness to such injured persons outweighs whatever financial burden may be imposed on insurers. Gurnee v. Aetna Life and Cas. Co., 55 N.Y.2d at 193. These decisions show that a self-insurer's responsibility to provide UM and no-fault coverage, alike, is not decreased merely because defendant is self-insured. A determination of a six-year statute of limitations would be more consistent with Legislative intent to provide maximum protection to injured persons. To decrease the time within which an injured bus passenger can bring a no-fault claim to three years would be the exact diminution of the protection to injured persons the Legislature intended to prevent. Furthermore, if the only reason self-insurance is an option for companies is to offer them an alternate form of establishing proof of financial responsibility, and companies, regardless if insured or self-insured, are obligated to provide the same benefits as required by provisions in an insurance policy, then there is no rational basis to differentiate time frames under which an injured person can bring a claim against an insurer or self-insured. The no-fault provision, like the UM provision in Shaw, should be deemed included in the company's certificate of self-insurance, the same as it would be included in a 21 policy of insurance. An injured person's rights should not be less because the bus carrier chose the cheaper and easier option to self-insure. For the aforementioned reasons based in law and policy, Respondent respectfully requests that the decision of the Appellate Division be AFFIRMED. Dated: Lake Success, New York September 14,2016 22 TRICIA C. SMITH, ESQ. Law Office of Cohen & Jaffe, LLP Attorney for Plaintiff -Respondent CONTACT CHIROPRACTIC, P.C. 2001 Marcus Ave., Suite W295 Lake Success, NY 11042 (516) 358-6900 CORPORATE DISCLOSURE STATEMENT APL-2016-00111 (Contact Chiropractic v NYCTA) Pursuant to Section 500.1 (f) of the Court of Appeals Rules and Practice, the undersigned counsel for Plaintiff-Respondent, Contact Chiropractic, P.C. certifies that no parent, subsidiary or affiliate exists. Executed and affirmed to be true under to the penalties of perjury at Lake Success, New York, this 14th day of September 2016. --, ~;c-·~G::::~/ · · c TRlCIA C. SMITH, ESQ 23 CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR § 670.10.3 (f) The forgoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings, citations, corporate disclosure statement, certificate of compliance and affidavit of service is 5,127. Dated: Lake Success, New York September 14,2016 24 TRICIA C. SMITH, ESQ. ATTORNEY AFFIDAVIT OF SERVICE STATE OF NEW YORK} } ss. COUNTY OF NASSAU } I, TRICIA C. SMITH, ESQ., being duly sworn, deposes and says; I am not a party to the action, am over eighteen (18) years of age and reside in the State ofNewYork. On September 14, 2016, I served the within LETTER BRIEF ON BEHALF OF PLAINTIFF-RESPONDENT and 3 true copies of the same via Federal Express Standard Overnight Delivery to the attorney representing Defendant-Appellant, addressed to the following: TO: Gabriella Palencia Office of the General Counsel New York City Transit Authority 130 Livingston Street Brooklyn, NY 11201 TRICIA C. SMITH, ESQ. 25